The year is 2011, and election coming up, the president is making lots of speeches and fundraising. On May 10, President Obama spoke at Chamizal National Memorial Park in El Paso Texas. He vowed to “keep up the fight” to pass comprehensive immigration reform through Congress, because the immigration system was broken. (Not broken. The immigration laws simply are not enforced).

He assured the audience that the border fence was essentially complete, (if “essentially complete” means that 84 miles of the mandated double fencing have been built of the 1,933 miles of our border with Mexico). That pertains to compliance with the Secure Fence Act of 2006.

Then he added:

“Sometimes when I talk to immigration advocates, they wish I could just bypass Congress and change the law myself, but that’s not how a democracy works,” Obama said. “What we really need to do is to keep up the fight to pass genuine, comprehensive reform. That is the ultimate solution to this problem. That’s what I’m committed to doing.”

Back in the halls of Congress, it is Jeff Sessions who once again spoke of constitutional government in defense of American workers in a clarifying speech yesterday on the Senate floor:

A number of things have been happening today with regard to the funding of the Department of Homeland Security. There’s been a lot of spin about that and that somehow the Republicans are blocking the funding of the Department of Homeland Security. This gives new meaning to the word “obfuscation,” I suppose, or “disingenuousness.” The truth is, the House of Representatives has fully funded the Department of Homeland Security. It’s provided the level of funding the President asked for. It’s kept all the accounts at Homeland Security as approved through the congressional process. It simply says, but, Mr. President, we considered your bill, this amnesty bill that will provide work permits, photo IDs, Social Security numbers, Medicare benefits. You can’t do that. We considered that and rejected it. So we’re not going to fund that.

Now, the President has told us and his staff that they have across the river in Crystal City, they’re leasing a new building and this building is going to hire a thousand workers, paid for by the taxpayers of the United States, part of Homeland Security. Are those thousand workers going to be utilized to enforce the laws of the United States? Are they going to process applications for citizenship or visas? No. Those 1,000 people, costing several hundred million dollars, in truth, those people are going to be processing and providing these benefits to people unlawfully in America… (Read on below)

President Obama has increasingly shown contempt for the constitutional limits on executive power, for Obama is a full-fledged relativist. A thoroughly modern man who is distinguished by the absence of “rigid” opinion and moral values. The Constitution which he took an oath to preserve and protect, should be updated to conform to more modern times. After all we are just one nation among many, no better, no worse, and certainly not exceptional.

Back on January 4, 2012, Mr Obama bypassed the Senate’s constitutional advise and consent power by naming three new members to the National Labor Relations Board, and appointing Richard Cordray to run the Consumer Financial Protection Bureau. Many Presidents have made recess appointments and we have supported that executive authority. So what difference, at this point, does it make?

The problem was that when Obama consciously made those “recess” appointments when the Senate wasn’t in recess but was conducting pro-forma sessions precisely so that Mr. Obama could not make a recess appointment. No president had ever tried that one before.

In Noel Canning v. NLRB, a Washington state Pepsi bottler challenged a NLRB board decision on the grounds that the recess appointments were invalid and the NLRB lacked the three-member quorum required to conduct business. A three-judge panel of the D.C. Circuit agreed, and briskly slapped down the White House about the separation of powers.

The opinion was 46 pages, and the three-judge panel said that “not only logic and language, but also constitutional history” reject the President’s attempt to go around the law. The Federalist Papers refer to recess appointments expiring at the end of the following session of Congress. It is a constitutional relic of a time when Congress would break for several months at a time, and lawmakers could not hop on a plane to get back to the capitol. It was meant as a stopgap for times when the Senate was unable to provide advice and consent, not as an exception to the rule.

The court cleared the air by noting that the Constitution refers not to “a recess” but to “the recess,” and an adjournment. The administration was trying to turn a power to make emergency appointments during a formal recess of Congress into a free-wheeling power to make appointments during any adjournment.

The ruling will invalidate everything done by the two agencies. Many agencies have bypassed normal congressional approval, without making their action into a good case for the Supreme Court. Lots of people have been harmed by determinations and orders from the NLRB and the CFPB, and they will head to court. The Administration will appeal to the Supreme Court. There will be arguments that the D.C. Circuit did not have jurisdiction, but the court persuasively found that it did. Going to be interesting. Tim Carney made noises about judicial overreach, and huffed and puffed, but that’s what Obama pays him for.

I read the section on “Injunction” and could scarely believe my eyes. Was the judge ordering the government not to enforce ObamaCare in all 26 states? Oh, yes, indeed.

Robert Alt of the Heritage Institute e-mailed me, “The judge noted that declaratory relief is the functional equivalent of an injunction, and applied the long-standing presumption ‘that officials of the Executive Branch will adhere to the law as declared by the court.’ So in the case, the judge asserted that the declaratory relief should bind the parties. If the Obama administration wishes to impose the requirements of Obamacare upon the states, it will need to seek a stay of the opinion either from the judge, or from the 11th Circuit.” [emphasis mine]

Correction: It is incorrect that this ruling only affects the 26 petitioning states, it stops enforcement of Obamacare in ALL states, because, as Gabriel Mator at Ace of Spades reminds us, the ruling is binding on all parties, not just the petitioners, but also the Federal Government:

The law is unconstitutional and that ruling is binding on the parties. Not just the 26 plaintiff states, mind you, as I’ve also seen erroneously reported.All parties to a lawsuit are bound, including and especially the defendants, that is, the U.S. departments attempting to implement ObamaCare. [read more]

In a ruling on Obamacare that is just out, in the largest case yet, brought by 26 states, Judge Roger Vinson of the Federal District Court in Northern Florida , has declared the entire law unconstitutional:

“For the reasons stated, I must reluctantly conclude that Congress exceeded the bounds of its authority in passing the Act with the individual mandate.”

“Because the individual mandate is unconstitutional and not severable, the entire Act must be declared void”

Most laws that congress writes have what is called a severability clause, that says, in effect, that should any individual part of the law be ruled unconstitutional, the rest of the law should remain in tact. I guess in their haste to shove this law down America’s throat in the dead of night, Democrats forgot to include such a clause, so the judge has tossed the entire law out.

Hot damn!

Obviously, this is not the final word, and will eventually be decided by SCOTUS, but it is encouraging nonetheless.